BOEHM, Justice.
Vincent Prowell pleaded guilty to the 1993 murders of Denise Powers and Chris
Fillbright and was sentenced to death. Prowell appeals the denial of his
petition for postconviction relief and raises seven issues, which we restate as three:
(1) Prowell was not afforded full and fair postconviction proceedings; (2) trial counsel
was ineffective; and (3) Prowells death sentence is cruel and unusual punishment in
violation of the constitutions of Indiana and the United States.
We conclude that Prowell received ineffective assistance of counsel at both the guilt
and penalty phases and that the postconviction courts findings to the contrary are
clearly erroneous. We therefore reverse the denial of postconviction relief and remand
with instructions to vacate Prowells guilty plea, rescind his death sentence, and order
a new trial.

Factual and Procedural Background

In November 1992, twenty-eight-year-old Vincent Prowell moved from Chicago to Evansville to live
with his mother, Karen Johnson, and her boyfriend, Ed Cooper. Although Prowell
had never seen or been treated by a mental health professional, those who
spent time with him suspected that something was seriously wrong with Prowell.
A number of people heard Prowell engage in conversations with himself while alone
in his bedroom, talk to the television set when it was turned off,
respond to questions with odd or indirect answers, drift off on incomprehensible conversational
tangents, and appear fearful of and threatened by others.
See footnote
In April 1993, Johnson and Cooper were arrested on drug charges, convicted, and
sentenced to prison terms. Prowell, who was unusually dependent on his mother
and had never before lived alone, moved into an apartment that Cooper had
rented for him. Prowells next door neighbor in the apartment complex was
Powers.
On May 23, 1993, Powers sat in her automobile waiting for Fillbright.
As Fillbright approached the drivers side door, Prowell shot him at close range
in the back of the head. Prowell then shot Powers twice through
the car window, piercing her lung and heart. An eyewitness identified Prowell
as the shooter.
Prowell v. State, 687 N.E.2d 563, 564 (Ind. 1997)
A few hours later, Prowell was apprehended by police in Benton County, Indiana
and confessed to both murders. Prowell also claimed that earlier that evening
he had run into Fillbright, whom he had never met before, near the
apartment complexs mailboxes. He told police that Fillbright had been hostile towards
him for no reason, acting all kinds of crazy towards Prowell, with a
military look in his eye, and slinging racial slurs and insinuation. In
his confession, Prowell told police that he felt threatened by Fillbright and responded
by getting his gun from his apartment and confronting Fillbright in the parking
lot. Neighbor Joann Rose testified that Prowell approached Fillbright, shot him once
from behind without any exchange of words, and then pivoted around to shoot
twice through the passenger window.
One week after the murders, salaried, part-time public defenders Dennis Vowels and Michael
Danks were appointed to represent Prowell, and a few weeks later, the State
filed notice of its intent to seek the death penalty. In mid-July
1993, trial was set for January 31, 1994, with jury selection to begin
on January 27. On December 22, 1993, six weeks before the trial
was scheduled to begin, Vowels attempted to obtain a plea bargain in exchange
for two consecutive sixty-year terms. The prosecutor refused the offer. On
January 14, 1994, Prowell pleaded guilty, without a plea agreement, to the murders
of Powers and Fillbright. The court accepted the plea and set sentencing
for March 3, 1994.
A week after the plea hearing, Vowels for the first time hired mitigation
investigator Steve Brock. On the recommendation of Brock and Paula Sites of
the Indiana Public Defender Council, Vowels asked for a continuance on February 22,
1994, to permit Brock to conduct a mitigation investigation. The court postponed
sentencing for six weeks to April 20, 1994. On March 30, 1994,
a full five weeks after obtaining the continuance, Vowels met for the first
time with psychologist Dr. Joel Dill and asked him to evaluate Prowell.
At the sentencing hearing, Dill testified that Prowell suffered from paranoid personality disorder,
a relatively minor mental disorder in comparison to more severe forms of paranoia.
See footnote
Several family members and the jail chaplain also testified on Prowells behalf.
The trial court found that Prowell did not commit the murders under
extreme mental disease or defect and sentenced him to death. The court
stated that it:
has been at a loss to find even a hint of a reason
as to why the Defendant would commit what is no less than a
double assassination or execution. The explanation given in one of Defendants statements
indicates racial slurs were made by Mr. Filbright to the Defendant. I
have trouble with this explanation for two reasons. One, words no matter
how hateful do not justify murder, and two, evidence adduced at the Sentencing
Hearing showed through pictures that Mr. Filbright was serving as an Army Officer
in Operation Desert Storm, and had many Afro-American friends in the Service.
Another statement revealed that the Defendant believed that Mr. Filbright was about to
pull a gun. I do not believe this, as Mr. Filbright was
shot in the back of the head execution style at close range.
The Defendant also stated he believed Ms. Powers was attempting to pull something
from her purse. All the physical evidence shows that Ms. Powers was
shot in the back of the head, in the side of her face
as she was attempting to get out of her car. The Defendants
explanation for shooting Ms. Powers is just not believable. There is no
explanation for these atrocious and senseless acts. If we could discern a
motive, maybe we could all better accept these tragedies.

On direct appeal, this Court affirmed the trial courts judgment and the imposition
of the death sentence.
Prowell, 687 N.E.2d at 570.
In postconviction proceedings, Prowell contended that his Sixth Amendment right to effective counsel
was violated. His principal contention was that his guilty plea was entered
before counsel had taken a number of essential steps to establish that, although
Prowell undisputedly killed the two victims, the death penalty was inappropriate in view
of Prowells demonstrably severely impaired mental health. The postconviction court denied relief
and this appeal ensued.

Standard and Extent of Review

Prowell bore the burden of establishing the grounds for relief by a preponderance
of the evidence. Ind. Post-Conviction Rule 1(5). Because he is now
appealing from a negative judgment, to the extent his appeal turns on factual
issues, Prowell must convince this Court that the evidence as a whole leads
unerringly and unmistakably to a decision opposite that reached by the postconviction court.
Harrison v. State, 707 N.E.2d 767, 773 (Ind. 1999) (citing Spranger v.
State, 650 N.E.2d 1117, 1119 (Ind. 1995)). We will reverse only upon
a showing of clear errorthat which leaves us with a definite and firm
conviction that a mistake has been made. Spranger, 650 N.E.2d at 1119.

I. The Postconviction Court Findings

Prowell contends that a number of factual findings by the postconviction court were
clearly erroneous. He notes that the Findings of Fact, Conclusions of Law
and Judgment on Petition for Post-Conviction Relief issued by the postconviction court on
July 7, 1999, are a virtually verbatim copy of the findings proposed by
the State on June 21, 1999.
See footnote
The conclusions of law were also
as the State proposed, except for the deletion of a conclusion that Prowell
had waived various claims by failing to raise the issues on direct appeal.
That conclusion was incorrect in light of the then-recent decision in Woods
v. State, 701 N.E.2d 1208, 1210 (Ind. 1998) (holding that a Sixth Amendment
claim of ineffective assistance of trial counsel may be presented for the first
time in a petition for postconviction relief).
It is not uncommon for a trial court to enter findings that are
verbatim reproductions of submissions by the prevailing party. The trial courts of
this state are faced with an enormous volume of cases and few have
the law clerks and other resources that would be available in a more
perfect world to help craft more elegant trial court findings and legal reasoning.
We recognize that the need to keep the docket moving is properly
a high priority of our trial bench. For this reason, we do
not prohibit the practice of adopting a partys proposed findings. But when
this occurs, there is an inevitable erosion of the confidence of an appellate
court that the findings reflect the considered judgment of the trial court.
This is particularly true when the issues in the case turn less on
the credibility of witnesses than on the inferences to be drawn from the
facts and the legal effect of essentially unchallenged testimony. For the reasons
explained below, most of the statements in the findings of fact and conclusions
of law are correct if viewed in isolation, but many are presented out
of context and, as a result, are significantly misleading. We find some
of the critical findings of the postconviction court to be clearly erroneous as
that term is used in Trial Rule 52(A).
A. The Postconviction Testimony
In preparation for the postconviction relief hearing, Prowell was examined by Dr. Thomas
Liffick, a psychiatrist and Medical Director of the Southwestern Indiana Mental Health Center
in Evansville, and Dr. Rahn Bailey, a psychiatrist and Director of the Division
of Law and Psychiatry at the University of Texas. Based on clinical
interviews, collateral source information, and social history records, both Liffick and Bailey diagnosed
Prowell as presently suffering, and suffering at the time of the murders, from
chronic schizophrenia.
See footnote At the postconviction relief hearing, Bailey testified that the murders
were highly likely to be directly related to the significant influence of the
most severe symptoms [of schizophrenia], including paranoia, hallucinations, delusional thought, and cognitive disorganization,
and that the nexus between the homicides and Prowells state of mind met
Indianas statutory criteria for mitigation.See footnote When Liffick asked Prowell if he knew
the victims, Prowell replied:
He thought I was somebody come to visit her; they knew about my
mother; everybody knew about it. Everything that goes on is tax free.
He let me know he knew who I was. I wasnt
the right element by saying two or three words. A lot of
things in the system wont be changed. Deformity does exist. Theres
a lot of scientific crap in it. It was a mental confrontation.
I would say insinuation, but I cant really.

Liffick agreed with Bailey that it was highly likely that Prowell acted under
paranoid delusions at the time of the shootings. Despite their testimony, the
postconviction relief court found that Prowells claims were without merit and denied his
petition for postconviction relief.
B. The Findings of Fact
Referring to Baileys testimony, the findings of fact state: [W]hile Dr. Dill diagnosed
Petitioner as suffering from paranoid personality disorder with schizoid tendencies at sentencing, that
diagnosis was the least restrictive, therefore a reasonable diagnosis under the circumstances.
Although this sentence may be literally correct, a review of Baileys testimony on
this point makes it clear that it is quite misleading. Bailey testified
that there are three possible paranoid diagnoses. The mildest of the three
is paranoid personality disorder. Paranoid delusional disorder is more severe and paranoid
schizophrenia is the most severe of the three diagnoses. The major difference
among the three diagnoses is the duration of the characteristic symptoms. Psychiatrists
and psychologists are trained, Bailey testified, to always give the diagnosis of least
intensity when there are varying diagnoses that are all consistent. By
definition, Bailey testified,
you cannot diagnose schizophrenia if the person has not had symptoms for six
months or greater. So, no matter how sick they look when you
see them, if you dont have access to records . . . that
show that he exhibited those kinds of symptoms more than six months ago,
you know, you are precluded, based on our training, from diagnosing schizophrenia.

Because of the paucity of information provided to Dill before the sentencing hearing,
specifically records and access to Prowells family and friends who could establish the
duration of Prowells symptoms, Bailey testified that Dill could not have reasonably diagnosed
paranoid schizophrenia at that time. It was the circumstances that made Dills
diagnosis reasonable under the circumstances. This is a complicated way of saying
that Prowells counsel did not supply Dill with the readily-obtainable facts to establish
the duration of Prowells illness. The failure of Prowells lawyers to provide
their single mental health expert with the depth and volume of information necessary
for a correct diagnosis is at the root of Prowells claim of ineffective
assistance of counsel.
The findings as to Baileys testimony regarding Dills original diagnosis of paranoid personality
disorder and Baileys own diagnosis of paranoid schizophrenia are equally flawed. The
findings of fact state that, according to Bailey, [t]he two diagnoses are very
similar. Again, Bailey did make this statement, but, taken out of context,
it stands Baileys testimony on its head. The finding is predicated on
the following exchange, which occurred during the States cross-examination of Bailey:
Would you characterize the paranoid personality disorder in contrast to paranoid schizophrenia, are
those two diagnoses more similar or more different from each other?

I think they are very similar. They are two of the only
three paranoid diagnoses in the textbook when you have paranoia, you can follow
up under this diagnostic category. The big issue is intensity.

Bailey went on to explain that, although both diagnoses share the symptom of
paranoia, the difference in intensity is important because it indicates how significantly a
persons functionality and thought processes are affected. On re-direct:
Would you tell us again whether there is a difference between a thought
disorder and a personality disorder and if so, what?

There is a tremendous difference. Axis I disorders are a big, heavy,
primary stuff that you see in psychiatry, so, schizophrenia, schizoaffective disorders, major depression,
and bi-polar disorder, anxiety. Those are the big guys. . . .
Those are psychiatric patients. Personality disorders are considered very minor in my
field. . . . If you spend this kind of time
with somebody, read all of his records, talk to all of his collateral
sources and then you say personality disorder versus schizophrenia, that is big.
You are not splitting hairs. That is a big, again, monumental difference.

The findings of fact also mischaracterize Dills testimony. Although Dill did testify
that he considered both paranoid personality disorder and paranoid schizophrenia before making his
diagnosis, he also testified that he had to reject paranoid schizophrenia because Prowell
did not admit to delusions or hallucinations. The findings of fact state
that [i]t was Petitioners failure to admit to hallucinations that partially prevented Dr.
Dill from diagnosing Petitioner with paranoid schizophrenia. This is reasoning straight out
of Catch-22. Just as Yossarians insane determination to stop flying on bombing
raids proved his sanity, the State contends that if Prowell suffers from a
disorder that causes him to deny its symptoms, he must be sane.
The expert testimony cited in support of this view in fact rejects it.
The thrust of Dills testimony is that a competent professional armed with
available facts would penetrate Prowells denials. Dill testified that in his three
short interviews with Prowell, he found him to be guarded and unwilling to
share much information, a characteristic to be expected of persons suffering from paranoid
schizophrenia. He also testified that he would have preferred to interview Prowell
for an extended period of time in a clinical setting where he could
have built trust with Prowell and conducted various tests. That option was
unavailable to him because he was hired by Prowells counsel on March 30,
1994, and he interviewed Prowell on April 11, 16, and 17, 1994.
The last interview was just three days before Dill testified at Prowells April
20 sentencing hearing. Nor did Prowells counsel present Dill with any information
from collateral sources about Prowells longstanding delusions or hallucinations.
The findings of fact state that Dr. Liffick noted that each of the
mental health professionals at the post conviction hearing had diagnosed Petitioner slightly differently
and compared it to arguing about a shade of a particular color.
This is clearly erroneous to the extent that it implies that Liffick was
comparing his own diagnosis of undifferentiated schizophrenia with both Baileys diagnosis of paranoid
schizophrenia and Dills earlier diagnosis of paranoid personality disorder. In fact, Liffick
testified only that there was very little difference in a clinical sense between
Baileys diagnosis (paranoid schizophrenia) and his own (undifferentiated schizophrenia). When questioned about
the distinction between Dills diagnosis of paranoid personality disorder, given to the trial
court, and the postconviction diagnoses of schizophrenia, Liffick replied:
There is a much more significant difference between paranoid personality disorder and schizophrenia
than there is between any of the subtypes of schizophrenia, so to say
that, at that time, he had a paranoid personality disorder was a misdiagnosis.
It actually put him in the wrong category of illness to a
very significant degree. The differences Ive already said between paranoid schizophrenia and
undifferentiated schizophrenia is miniscule in comparison.

The postconviction court found that [c]ounsel sought to employ a mental health expert
sufficiently in advance of the sentencing hearing.
See footnote In fact, Dill testified, and
the billing records from Vowels confirm, that he was first contacted by Prowells
lawyers on March 30, 1994, three weeks after the date of the original
sentencing hearing and three weeks before the postponed sentencing hearing. Due to
these time constraints, Dill was unable to interview Prowell under normal conditions or
at any length. Nor could he establish a relationship necessary to elicit
information or collect the full range of records and information from collateral sources
necessary for a proper diagnosis. The finding that Dill was employed sufficiently
in advance of the sentencing hearing is clearly erroneous in light of the
evidence presented to the postconviction court.
The findings of fact make no reference to the postconviction courts assessment of
the credibility of Dill, Bailey, or Liffick. It is quite clear from
the testimony of all three doctors that paranoid or undifferentiated schizophrenia is substantially
different from paranoid personality disorder. In light of this fact, the postconviction
courts finding that the evidence presented to the postconviction court was simply more
of the same as that presented to the sentencing court is clearly erroneous.
The postconviction courts findings and conclusions also stated that:
While Petitioner now offers additional (and some of the same) family members and
expert witnesses, the substance of their testimony is simply more of the same
evidence presented at the sentencing hearing. Save the mere quantity of the
witnesses, trial counsel put on substantially the same mitigation case developed and presented
by postconviction counsel more than five years after the sentencing hearing. That
is to say, trial counsel developed the very contours of the mitigation theory
and defense presented by postconviction counsel who was proceeding with the advantage of
hindsight and an additional five years time. It cannot be the law
that trial counsel will be said to have performed at sentencing in an
objectively unreasonable manner whenever subsequent counsel can, with unlimited time and resources, heap
on additional or even better evidence to support the mitigation theory. . .
. Counsel were not ineffective for relying on the diagnosis at trial which
was substantially the same as the evidence presented at the postconviction hearing.

Prowell first points out that this paragraph is nearly identical to language in
the States reply brief in
State v. Holmes, 728 N.E.2d 164 (Ind. 2000),
and to the postconviction relief courts findings of fact and conclusions of law
in Wrinkles v. State, 690 N.E.2d 1156 (Ind. 1997). Although we sympathize
with the usefulness of recycling language, it is not appropriate to use form
language where those statements are not an accurate reflection of the testimony and
evidence. That is the case here. As already noted, the statement
that the evidence presented to the postconviction relief court was simply more of
the same as that presented to the sentencing court is clearly erroneous.
Both Bailey and Liffick testified, in depth, as to the monumental and very
significant differences between a diagnosis of paranoid personality disorder and a diagnosis of
schizophrenia. Nor can it be said that the evidence was produced with
the advantage of hindsight and an additional five years time. Vowels continued
to represent Prowell in his direct appeal to this Court and the ineffectiveness
of trial counsel at the guilt and sentencing phases was not an issue
in that direct appeal, which concluded when rehearing was denied on March 2,
1998. The counsel who represented Prowell in postconviction proceedings entered their appearances
on March 31 and October 13, 1998, and the postconviction hearing took place
on April 19, 1999. Counsel did not have an additional five years
to investigate this case, let alone unlimited time.

II. Ineffective Assistance of Counsel

Prowell's primary claims in this appeal are ineffective assistance of trial counsel at
the guilt and sentencing phases of his case. For the most part,
the claimed shortcomings in counsels performance bear on both, because they relate to
the failure to present the severity of Prowells mental health, which related to
any insanity defense, to the plea of guilty but mentally ill, and to
the appropriateness of the death penalty.
To establish a violation of the Sixth Amendment right to effective assistance of
counsel, the defendant must show that (1) counsels performance fell below an objective
standard of reasonableness based on prevailing professional norms; and (2) there is a
reasonable probability that, but for counsels errors, the result of the proceeding would
have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Prowell argues that his trial counsel were ineffective at the guilt phase on
four grounds: (1) inadequate factual mitigation investigation; (2) inadequate development of expert testimony;
(3) failure to form and execute a reasonable trial strategy; and (4) violations
of Criminal Rule 24. For these purposes, the issue is not whether
testimony similar to Lifficks and Baileys, along with the background witnesses, would carry
the day. It is sufficient that there is a reasonable probability that
this is the case, and we have no doubt that this showing was
easily made.
A
. Counsels Awareness of Potential Mental Health Issues
Vowels had previously served as second chair in the defense of Timothy Anderson,
who was charged with murder and tried in Judge Youngs court. After
Anderson was convicted on a plea of guilty but mentally ill, the jury
recommended death. Judge Young instead imposed a term of sixty years, stating
that the jurys verdict of guilty but mentally ill is inconsistent with the
death sentence. Based on this experience, Vowels formulated a strategy to rely
on Judge Youngs presumed reluctance to sentence a mentally ill person to death.
In the Anderson case, Judge Young stated that he was persuaded by compelling
evidence, including the testimony of a number of psychiatrists who relied on their
own evaluations and a detailed background report, that the defendant had long suffered
from a severe mental illness.
See footnote
At Prowells sentencing, Judge Young denied any
parallels to the Anderson case: I rejected the death penalty recommendation from
the Jury on that case because I personally do not believe that we
should execute mentally ill individuals. That case and the case of Mr.
Prowell do not have any similarities other than death of a victim.
Prowell first claims that his trial counsel were ineffective because they failed to
conduct a reasonable mitigation investigation. Specifically, he argues that despite their suspicions
that Prowell suffered from mental illness, Vowels and Danks failed to investigate adequately
his mental health with the goal of a defense of insanity or a
plea of guilty but mentally ill. Both Vowels and Danks testified at
the postconviction relief hearing that from the outset of their representation, they believed
Prowell to be mentally unsound or mentally ill. For example, Vowels testified
that his first impression of Prowell was that [s]omebodys home, but the lights
arent on. He also described the experience of attempting a conversation with
Prowell as pulling teeth.
You may ask Mr. Prowell, How are you today? and his visual .
. . I mean, what you take in, I say, How are you
today? and the look he gives you is that you have just asked
him to reveal Einsteins Formula of Relativity. I mean, its like its
a very complex thing for him to respond to you.

Similarly, Danks testified that Prowell was withdrawn and distant, didnt appear to understand
the gravity of the situation, and didnt under[stand] reality in a normal sense.
Although Vowels believed Prowell to be mentally ill, he did not consider
recommending pleading guilty but mentally ill, which is one of the three pleas
appropriate in Indiana criminal proceedings. Ind. Code § 35-35-2-1(a)(3) (1998); Miller v.
State, 720 N.E.2d 696, 702 (Ind. 1999).
Despite his experience with the Anderson case and his belief that Prowell was
mentally ill, Vowels did not take similar steps to investigate Prowells background and
family history to supply his expert with the necessary information to form a
proper diagnosis. A lawyer experienced in capital representation, the mitigation investigator, and
two psychiatrists all testified at the postconviction hearing that the information gathered by
Prowells trial counsel and provided to Dill before the sentencing hearing was inadequate
and below prevailing norms in capital cases. It is clear from the
record that Dills conclusion that Prowell suffered from paranoid personality disorder, described by
both psychiatrists as a far less serious mental illness than schizophrenia, was an
inevitable result of the scanty information supplied to him and the fact that
he was retained just eighteen days before Prowells sentencing hearing. Essentially, Vowels
allowed Prowell simply to fall on the mercy of the trial court without
developing the evidence necessary to support a diagnosis of serious mental illness.
This step is certainly not necessary to effective counsel in every case.
Here, however, there were obvious indications that Prowells case did present substantial issues
turning on the development of this evidence.
B
. Failure to Develop Expert Testimony
Despite their suspicions that Prowell suffered from severe mental illness and their decision
to rely on the judges reluctance to sentence a mentally ill person to
death, Vowels and Danks did not retain Dill until ten months after they
were appointed to represent Prowell and two-and-a-half months after the guilty plea.
Nor did they hire mitigation investigator Steve Brock until a week after Prowell
had pleaded guilty. Vowels, who had previously served as second chair in
the defense of Anderson, a death-penalty-eligible defendant who pleaded guilty but mentally ill,
had experience with gathering evidence of mental health mitigators, but did not attempt
do so until after Prowells plea. Without the assistance of a psychologist
or psychiatrist and a mitigation investigator, Prowells trial counsel did not have the
basic information necessary to advise Prowell as to a plea of guilty but
mentally ill, nor did they have the ability to argue persuasively for a
plea agreement on that basis.
The fact that Vowels waited until after Prowell had pleaded guilty to retain
a mental health expert is in itself troubling. But concern is heightened
by the haphazard way Vowels went about hiring that expert. The same
Liffick who examined Prowell before his postconviction relief hearing and diagnosed him as
suffering from schizophrenia was a psychiatric witness in the Anderson case. Despite
Vowels prior experience with Liffick, who was the Medical Director of the Southwestern
Indiana Mental Health Center in Evansville and an expert in schizophrenia, when Vowels
finally did produce an expert to testify at Prowells sentencing, he relied on
the recommendation of a new lawyer who knew Dill only through Dills testimony
in Social Security disability benefits hearings.
Finally, Liffick, Bailey, and Dill all agreed in postconviction testimony that when Dill
was eventually retained, he was not given enough time or adequate information to
diagnose Prowell properly. Dill did not have the time to establish a
relationship with Prowell that would enable him to gain useful information. Bailey
testified that without records or other evidence that a patients symptoms had lasted
longer than six months, no doctor could, in good conscience, arrive at a
diagnosis of schizophrenia. In simple terms, Prowells under-diagnosis as suffering from paranoid
personality disorder was a direct result of his counsels failure to retain a
mental health expert in a timely manner and their failure to provide the
sole expert with essential information.
C
. Failure to Form and Execute a Reasonable Trial Strategy
Vowels trial strategy was, in his words: to rely on the good graces
of the Circuit Court judge not to put my client on death row.
But as Judge Youngs comments at Prowells sentencing make clear, Vowels failed
to convey to the court the severity of Prowells mental illness and connect
it to the murders. This failure to investigate adequately Prowells mental status
and secure appropriate expert testimony was compounded by the fact that, at the
guilty plea hearing, Vowels affirmatively represented Prowell to be mentally sound at that
time and at the time of the murders. These statements significantly undermined
an already flimsy sentencing strategy.
Although Vowels and Danks had spent several hours preparing Prowell for the guilty
plea hearing, Prowell had difficulty stating a factual basis for the plea that
was acceptable to the court and prosecutor. In an attempt to remedy
the situation, Vowels asked Prowell a few questions to establish that he knowingly
committed the murders. Still unsatisfied that Prowells statements adequately met the culpability
requirement, the prosecutor admitted a transcript of Prowells initial statement to police in
order to establish a factual basis for the plea. Worried that the
court would still not accept Prowells plea, Vowels volunteered:
Judge, I have no question Mr. Prowell understands this Hearing, understands what hes
charged with, understands the proceedings, understands what hes waiving today. He is
fully capable of assisting me, he is fully capable of discussing the case
with me. He has reviewed the case file with me, he has
intelligently discussed the facts of the case, he is lucid, he has a
good attention level. My investigation, and I will candidly tell your Honor,
at this point I am bound by a privilege, but I can tell
you, and it is not my, let me say this, my investigation reveals
that my clients plea today is knowingly, voluntarily, and that he is of
sound mind today and on the event of the murders.

This is an astonishing statement given that Prowell pleaded guilty without a plea
agreement and that Vowels sole sentencing strategy was to convince Judge Young that
Prowell was severely mentally ill and therefore should not be sentenced to death.
Vowels statement to the court about Prowells comprehension of the proceeding, his
ability to assist in his own defense, and his sound mind today and
on the event of the murders is fundamentally inconsistent with his attempt to
argue that Prowell had long suffered from a serious mental illness which mitigated
his culpability for the murders. Given the inconsistency of Vowels statements to
the court, the testimony of a psychologist that Prowell merely suffered from a
personality disorder, and the paucity of mitigating evidence or testimony regarding Prowells background,
it is not surprising that Judge Young found that Prowells case bore little
resemblance to Andersons. There is more than a reasonable probability that the
decision of the trial court to sentence Prowell to death was a direct
result of counsels ineffectiveness.
Vowels speech was apparently an effort by counsel to cause the court to
accept the plea, but it at the same time disavowed Prowells best hope
to avoid the death penalty. It is not too harsh to state
that it appears counsels desperation to avoid a trial for which there was
grossly inadequate preparation also drove Prowells lawyers to jettison his best hope to
survive.
D
. Criminal Rule 24 Violations
Prowell offers an explanation for why his trial counsel failed to conduct an
adequate mitigation investigation, retain experts who could provide the severe diagnosis that Liffick
and Bailey found, or even take the time to create a reasonable strategy.
Prowell points out that, throughout his representation, Vowels carried a felony caseload
far in excess of that permitted under Criminal Rule 24(B)(3). Indiana is
unique among the states in its effort to prevent ineffective assistance of counsel
in capital cases. Criminal Rule 24 provides that appointed counsel shall not
accept workloads which, by reason of their excessive size, interfere with the rendering
of quality representation or lead to the breach of professional obligations. Salaried
or contractual public defenders are to be appointed as trial counsel in capital
cases only if:
the public defenders caseload will not exceed twenty (20) open felony cases while
the capital case is pending in the trial court;
no new cases will be assigned to the public defender within thirty (30)
days of the trial setting in the capital case;
none of the public defenders cases will be set for trial within fifteen
(15) days of the trial setting in the capital case; and
compensation is provided as specified in paragraph (C).

Although the point has never been made explicit, we think it is clear
that unless any variances from the standards of the rule are disclosed to
the court, acceptance of employment under the rule constitutes a representation to the
trial court that counsel meets the requirements of the rule. Courts cannot
be expected to police sua sponte the caseloads of the counsel appearing before
them. It is incumbent upon defense counsel to raise any issue presented
by counsels workload in excess of the limits laid out in the rule.
The rule is self-enforcing to the extent that the State may refuse
to reimburse counties for attorney expenses if the requirements of Criminal Rule 24
are not met.
The most obvious remedy is found within the rule itself, that is, refusing
to compensate a county for attorneys fees and expenses where the defense attorney
is found to be in violation of the caseload limits prescribed by the
rule without the courts permission. Presumably, the county would then penalize the
lawyer who violated the rule by withholding payment for time spent on cases
where the rule was violated. Experience suggests that lawyers are likely to
observe rules if their paychecks depend on it.
We note that Vowels may well have reasonably concluded that there was no
need to raise the Criminal Rule 24 issues with the trial court because
the trial courts appointments were themselves the source of these Criminal Rule 24
problems. In any event, the issue here is not the remedy for
a Criminal Rule 24 violation. It is the effectiveness of Prowells representation,
whether it stemmed from that circumstance or others.
In this case, Vowels apparently made no effort to limit his caseload to
comply with Criminal Rule 24 or to raise the issue with the court.
Vowels was appointed to represent Prowell on May 31, 1993. On
that day, he had twenty-eight open public defender felony cases. From May
31, 1993 through May 5, 1994, the day when Judge Young sentenced Prowell
to death, Vowels felony public defender caseload ranged from twenty-one to forty-three open
felony cases. Prowells original trial date was set for late January 1994.
In the months of November and December 1993, when Vowels presumably should
have focused his attention on Prowells case, he had an average of thirty-eight
open public defender felony cases, nearly twice the number allowed under Criminal Rule
24. Vowels is a salaried part-time public defender in Vanderburgh County.
The number of additional private felony cases that he carried during his year-long
representation of Prowell is unknown.
Vowels caseload also violated subsection (B)(3)(c)(iii) of Rule 24, which specifies that none
of the public defenders cases may be set for trial within fifteen days
of the capital trial. Vowels was appointed to represent Raphael Hastie on
a non-capital murder charge with trial set for February 7, 1994, approximately ten
days after Prowells trial was scheduled to begin. Vowels testified at Prowells
postconviction relief hearing that he believed that he had a good chance of
securing an acquittal for Hastie and that he had spent a large number
of hours in December 1993 and January 1994 preparing for the case.
Given the rigors of his high caseload, and particularly the demands of the
Hastie case, Vowels testified that he was not prepared to take the Prowell
case to trial on January 27, 1994. He testified that he took
no steps to select a jury for the Prowell trial, was not prepared
to question potential jurors in a death penalty case, was not prepared to
present a defense in the guilt phase of the trial, and was not
prepared to present a mitigation case. Vowels did not counsel Prowell to
plead guilty to two death-penalty-eligible murders without a sentencing agreement based on a
reasonable trial strategy. Instead, in his words, he did so because he
was afraid to try his case.
E
. Reasonable Probability of a Different Result
Prowells condition obviously raised significant issues as to an insanity defense, whether a
guilty or guilty but mentally ill plea was appropriate, and the appropriate sentence.
Counsel failed to develop mental health testimony and conducted only the most
cursory investigation of Prowells behavior and background before advising him to plead guilty.
This performance of Prowells trial counsel fell below an objective standard of
reasonableness based on prevailing professional norms. The second prong of the Strickland
test for ineffective assistance of counsel is whether there is a reasonable probability
that the deficiencies in counsels performance prejudiced the defendant. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Strickland,
466 U.S. at 694. Prowells claims that but for his counsels ineffective
assistance, he would not have pleaded guilty. In State v. Van Cleave,
674 N.E.2d 1293, 1296-97 (Ind. 1996), this Court applied the Strickland standard to
a claim of ineffective assistance of counsel where the defendant pleaded guilty.
We held that in order to establish that a guilty plea would not
have been entered if trial counsel had performed adequately, the petitioner must show
that a defense was overlooked or impaired and that there was a reasonable
probability of success at trial. Van Cleave, 674 N.E.2d at 1299-1300.
Van Cleave dealt with a trial that could produce only two results, guilty
or not guilty. A more precise formulation, relevant here, is that the
petitioner must show a reasonable probability of a different result. Prowells hypothetical
trial could produce a result of either guilty, not guilty, or guilty but
mentally ill. Thus, the question in this case is whether there was
a reasonable probability a trial would have produced a result of either not
guilty or guilty but mentally ill.
Although the evidence that Prowell killed Powers and Fillbright is uncontroverted, the
evidence at postconviction established a reasonable probability that a jury would have found
Prowell guilty but mentally ill if an adequate defense had been presented.
Although a guilty but mentally ill conviction or plea does not guarantee a
defendant that the death penalty will not be imposed,
Harris v. State, 499
N.E.2d 723, 725-27 (Ind. 1986), as a practical matter, defendants found to be
guilty but mentally ill of death-penalty-eligible murders normally receive a term of years
or life imprisonment.
See footnote
See Dunlop v. State, 724 N.E.2d 592, 596 (Ind.
2000) (sentenced to life imprisonment after jury verdict of guilty but mentally ill);
McIntyre v. State, 717 N.E.2d 114, 119 (Ind. 1999) (sentenced to life imprisonment
after jury verdict of guilty but mentally ill); Whipple v. State, 523 N.E.2d
1363, 1365 (Ind. 1988) (sentenced to term of years after a jury verdict
of guilty but mentally ill). Prowell focuses on the statement by Judge
Young in the Anderson case that the death penalty is inappropriate for a
defendant found guilty but mentally ill. We believe the Strickland test is
to be applied without regard to the propensities of an individual judge or
jury. See Hill v. Lockhart, 474 U.S. 52, 60 (1985) (citing Strickland,
466 U.S. at 695). Nevertheless, we believe Judge Youngs view is shared
by many and therefore the view he expressed meets the test of a
reasonable probability as an objective matter.
There is a second aspect to counsels deficient performance in this case.
Here counsel advanced pleading guilty without having developed either expert opinion or background
information that were highly relevant to an evaluation of Prowells mental health which
in turn was relevant in both the guilt and penalty phases. Postconviction
hearing established that the prosecutor refused a guilty plea in exchange for two
consecutive life sentences. It also established that Prowells counsel never considered seeking
a guilty but mentally ill plea agreement, with or without an agreement as
to the penalty. Even with no agreement on penalty, such a plea
agreement would most likely have averted the death penalty. There is a
reasonable probability that failure to seek such an agreement, and the prosecutors presumed
rejection, are both attributable to failure to develop before the plea the evidence
that was presented to the postconviction court.

III. Manifestly Cruel and Unusual Punishment

Finally, Prowell claims that the death penalty, as applied to defendants who suffer
from severe mental illness, cannot be reconciled with the evolving standards of decency
required by Article I, Section 16 of the Indiana Constitution and the Eighth
Amendment to the United States Constitution.
Trop v. Dulles, 356 U.S. 86,
101 (1958). Because we have determined that Prowells claim of ineffective assistance
of counsel has merit and that he is entitled to postconviction relief on
that ground, we need not address the question of whether the execution of
the severely mentally ill is constitutional in Indiana.

Conclusion

We conclude that Prowell received ineffective assistance of trial counsel at both the
guilt and penalty phases. The denial of Prowells petition for postconviction relief
is reversed. The case is remanded with instructions to grant Prowells petition
to vacate his guilty plea and order a new trial.

SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.

Footnote: Several witnesses testified at the postconviction hearing to Prowells delusions and paranoia.
For example, Karen Johnson, Prowells mother, testified at the postconviction relief hearing
that Prowell was once convinced that his grandmother, with whom he had a
strong and loving relationship, had poisoned his orange juice. He had his
brother take him to have his stomach pumped out, she testified. He
just went berserk on [his grandmother], accusing her of poisoning him. After
that incident, Karen suggested to her son that he talk to a psychiatrist,
but Prowell became very, very angry and refused. Because he was an
adult and had never committed a violent act, Karen was advised that she
could not force him to seek treatment without his consent. Derek Reed,
a childhood friend of Prowells, testified that, on one occasion, when Reed rode
in a car driven by Prowell on Lake Shore Drive in Chicago, Prowell
suddenly jerk[ed] his brakes on the highway and exclaimed, Didnt you see that
elephant? Toni Johnson, the domestic partner of Prowells mother during his childhood,
also testified that Prowell saw elephants on the expressway. Once, while swerving
to miss an elephant, Prowell wrecked her car. Toni also stated that
Prowell lost a job at a downtown Chicago hotel because he saw several
white people exit a car and he ran to hide because he thought
they wanted to kill him. Neither Reed nor Toni was interviewed by
Prowells counsel until the postconviction relief stage. Footnote: According to the
The New Harvard Guide to Psychiatry:
The essential feature of paranoid personality disorder is a pervasive and unwarranted suspiciousness
and mistrust of people. These attitudes are intense and strongly defended.
Patients search for evidence of deception, threat, or malevolence in others and are
extremely sensitive and resistant to any suggestion of their own guilt or responsibility.
. . . This disorder is usually a stable and syntonic form of
adaptation. Except for interpersonal difficulties with those in authority or those who
attempt to become too close, paranoid individuals are likely to function stably.
The New Harvard Guide to Psychiatry 342 (Armand M. Nicholi ed., 1988)Footnote: The postconviction court made only trivial changes to the States proposed findings
of fact. Two sentences were moved to different places in the document
and an error in addition was corrected. Footnote: Bailey diagnosed Prowell as suffering from paranoid schizophrenia, while Liffick found that
Prowell suffers from undifferentiated schizophrenia. Footnote: Bailey testified that he believed that Prowell suffered from a mental disease
or defect as defined in Indiana Code section 35-41-3-6:
A person is not responsible for having engaged in prohibited conduct if, as
a result of mental disease or defect, he was unable to appreciate the
wrongfulness of the conduct at the time of the offense.
As used in this section, mental disease or defect means a severely abnormal
mental condition that grossly and demonstrably impairs a persons perception, but the term
does not include an abnormality manifested only by repeated unlawful or antisocial conduct.Footnote: Although characterized by the postconviction court as a conclusion of law, this
is actually a finding of fact and is reviewed as such. We
accept the postconviction courts findings of fact unless clearly erroneous, Ind. Trial Rule
52(A), but no deference is accorded conclusions of law.
State v. Van
Cleave, 674 N.E.2d 1293, 1295-96 (Ind. 1996). The label the trial court
applies to a finding or conclusion is not determinative. Id. at 1296.Footnote: In the Anderson case, Judge Young found:
. . . that the defendant has a significant history of mental illness
and that over the years, he has voluntarily admitted himself to various hospitals
for treatment. I further find that there is no conflict in the
evidence as to the defendants mental illness. He was born with this
mental illness which first manifested itself during his twenties and continues to the
present time. It is not concocted or faked and there is no
doubt that the defendant is severely mentally ill.

Footnote: Even James Allen Harris, the defendant in the case which established that
the imposition of the death penalty for a defendant found to be guilty
but mentally ill is constitutional, eventually had his death sentence vacated by a
postconviction relief court. He was then resentenced to a term of sixty-years
imprisonment. None of the current residents of Indianas death row and none
of those executed in Indiana since the death penalty was reinstated in 1977
were found to be guilty but mentally ill either by a jury or
through an accepted plea.